Burma Lawyers See Greater Freedom, but Still Far to Go

Lawyers note a substantial lessening of interference from the government but say significant challenges remain to their independence under Burma’s quasi-civilian government.

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By Samantha Michaels 3 December 2013

RANGOON — Lawyers in Burma have seen a substantial lessening of harassment and interference from the government in the transition from military rule, but significant challenges to their independence remain, particularly in politically sensitive cases, the International Commission of Jurists (ICJ) says.

In a report launched Tuesday, the international commission of judges and lawyers said endemic corruption, low-standard law schools, and the military’s impunity from prosecution have undermined Burma’s rule of law, a concept that opposition leaders and the government alike have highlighted as necessary to boost political reforms.

Rule of law is also seen as crucial for attracting foreign investors, who may be wary of conducting business in a country where land disputes and other conflicts are often settled through protests or violence, rather than in the courts.

“Since 2011, in particular, there have been significant improvements,” Sam Zarifi, the Asia-Pacific regional director for the ICJ, told reporters at a press conference in Rangoon, referring to increasing freedom for lawyers since President Thein Sein’s quasi-civilian government came to power. “Overwhelmingly, unanimously, I would say, the lawyers we spoke with said their overall independence had improved clearly over the past few years.

“But the track record for the independence of lawyers in Myanmar [Burma] was quite poor,” he added.

Despite improvements, harassment and monitoring by state authorities, particularly in sensitive cases involving ethnic or religious minorities, continue to hamper the work of lawyers in Burma, according to the report, which drew from interviews with dozens of senior government lawyers, prosecutors, judges, human rights lawyers, and commercial and family lawyers who do not work on political issues.

Lawyers in Burma played an important role in the struggle against nearly half a century of dictatorship. Many lawyers acted as human rights defenders, challenging rights violations or promoting political reform, while others defended the cases of rights activists in the courts. Under military rule, lawyers were routinely subjected to criminal prosecutions and convictions related to their representation of clients in politically sensitive cases.

“It was not rare for military intelligence to come and knock on your door after you had seen a client, so lawyers were afraid,” one lawyer told the ICJ, as quoted in the report.

Citing the International Bar Association, the ICJ said more than 1,000 of Burma’s estimated 48,000 lawyers had been disciplined over the past 20 years, with many having their licenses revoked or suspended. As many as 200 lawyers who were disbarred for political reasons may remain without licenses, the report said, adding that others had seen their licenses reinstated.

“In the Myanmar legal community, the first priority goes to judges, second to prosecution, third to police and then to lawyers. Lawyers are the lowest, they always look down on the lawyers,” said the joint secretary of the Myanmar Lawyers Network, Thein Than Oo, whose license was revoked when he was imprisoned for his involvement in the 1988 pro-democracy uprising. His license was reinstated last year.

Following anti-government protests, including the nationwide demonstrations in 1988, the former military regime took steps to weaken the legal education system and restrict the ability of lawyers to organize in independent self-governing bodies that could protect their professional interests. Legal education in Burma has been undermined by a reduction in admission standards, said the ICJ, as well as poorly devised curriculum and methods of instruction that have produced graduates who are generally seen as ill-prepared to practice law.

Since at least the mid-1990s, a change requiring law students to take exams in English rather than Burmese language has also caused problems. Khin Mar Yee, head of the department of law at Yangon University—which was for many years the only law school in the country—told the ICJ that English-language requirements were the greatest challenge to legal education today.

There are now 11 institutions that provide some form of legal education in Burma, but admission standards and expectations remain low, according to the report. It said law students at distance-learning universities in Rangoon and Mandalay prepared for English-language examinations through pre-test courses where they receive exam questions in advance.

“I finished school in 2006,” Than Than Aye, a lawyer from Pegu Division, told reporters at the press conference. “In my honest opinion, it was not adequate legal education, so I had to try to study on my own outside school. The older lawyers had better schooling. Before ’88, the system was good, but afterward the system deteriorated.”

After graduating school, lawyers interviewed for the report said it had become easier to challenge security forces in cases of alleged human rights violations but that they still encountered problems. “Challenging the military remains hugely problematic in Myanmar because of the special impunity written into the Constitution, and essentially the inability to challenge the military in civilian courts,” Zarifi said.

Harassment has decreased since 2011, but lawyers interviewed for the report recalled being followed by the police during their work and being interrupted by security officials during human rights training workshops. In March, the UN special rapporteur on human rights in Burma also expressed concern about ongoing intimidation of lawyers in the country.

One area that has not seen improvement since 2011 is intimidation of lawyers representing religious minorities, especially Muslims, said Zarifi, and particularly in western Burma’s Arakan State. “The lawyers we spoke with uniformly said they stay away from such clients,” he said. “There is significant fear on the parts of lawyers who are willing to take these cases or willing to represent these clients,” he added, citing intimidation by officials as well as private parties.

Tensions between Buddhists and Muslims in Buddhist-majority Burma have heightened over the past year, with several instances of deadly anti-Muslim rioting around the country, as well as communal clashes in Arakan State that left about 140,000 people homeless last year.

While corruption has improved in recent years, according to the report, nearly all lawyers interviewed identified bribery for particular legal outcomes, as well as the misuse of influence, as the most acute challenges to their independence. The ICJ said corruption not only undermined the public’s view of the legal process, but also affected aspects of a lawyer’s career ranging from completing law school to retaining clients, accessing information, submitting motions, winning cases and ensuring enforcement of judgments. “I will lose if my opponent has money,” one lawyer was quoted as saying in the report.

Moe Moe Aye, a Rangoon-based advocate and legal adviser at Hlaing International law firm, called for a raise in judges’ salaries to help curb the practice of bribery. “We not only need to increase their salaries, but we also need an independent committee to inspect cases of bribery,” she told The Irrawaddy.

Among chief recommendations by the ICJ was reform to the Myanmar Bar Council, a statutorily mandated institution that oversees registration and discipline of advocates. The 11-member body currently lacks independence, said the report, as it is chaired by the attorney general, while the vice chair is the deputy attorney general. Lawyers interviewed in the report unanimously condemned the council, with some reportedly saying its members were asserting government control over the legal profession and in some cases actually acting against the interest of lawyers.

Earlier this year, the government published a draft amendment to the Bar Council Act that would incorporate membership of 10 advocates, elected by advocates. Zarifi said the Bar Council Act was currently moving through Parliament.

The Ministry of Education has also been urged by the ICJ to bolster standards of admission to law school and to improve law school curricula, instruction and assessment of students.

The ICJ is a nongovernmental organization that comprises 60 judges and lawyers from around the world and is active on five continents. It works to promote human rights by defending the rule of law and advancing the independence of judiciaries and lawyers.

The ICJ discussed its findings in Naypyidaw with Sit Aye and Khin Myo Myint, legal advisors to Thein Sein; as well as Nanda Kyaw Swe, chairperson of the Lower House commission on the assessment of legal affairs and special issues; and Htay Oo, deputy chairperson of the Lower House committee on fundamental rights of citizens, democracy and human rights.